Denise I. Murphy

Denise Murphy is an experienced employment defense lawyer licensed in Massachusetts with an active practice throughout the United States. Her practice areas include sexual harassment claims, discrimination claims, adverse workplace actions, counseling of employers and their employeees, employee handbooks, and training. Ms. Murphy also represents companies and individuals in excecutive compensation negotiations and disputes over covenants not to compete.

Denise Murphy was named to the Top 50 Massachusetts Women Lawyers in 2008, and was named a Super Lawyer in the field of Employment Law in 2007.

As a result of legislation signed into law by Governor Deval Patrick on August 6, 2010, the Commonwealth’s Criminal Offender Record Information (“CORI”) system has undergone sweeping changes which dramatically impact employers doing business in the Commonwealth of Massachusetts. Effective November 4, 2010, the ability of most employers to inquiry about a candidate’s criminal background on an employment application will be limited.

The prohibition against inquiries on initial applications exempts from compliance certain employers, i.e., school systems and financial services companies, who are prohibited by state or federal law from hiring individuals convicted of certain types of crimes. Notably, this restriction does not prohibit criminal history inquiries points beyond the initial application process, such as during an actual interview. For example, employers could seek this information during subsequent interviews.

Effective in February of 2012, there will be further changes to an employer’s ability to inquire into a candidate’s criminal background which will ease an employer’s ability to make appropriate background inquiries. The Commonwealth will establish a new CORI database which employers can, for a fee, access to obtain information regarding an applicant’s convictions and pending charges. However, before an employer can use this information to either eliminate the candidate or question the candidate about this information, the employer will be required to provide the applicant with a copy of that CORI information. If the employer uses the information provided by the CORI database to make a hiring decision within ninety (90) days of receipt of the information, that employer will receive an additional benefit. The employer will be protected from liability from certain types of adverse claims, such as negligent hiring or failure to hire claims.

There are also new limitations on the information which employers may access from the CORI database. Records for most felony convictions will not be available from the database after ten (10) years and misdemeanor information will be restricted after five (5) years. Certain sex crimes, murder convictions, and various other crimes will remain available from the CORI database.

Any employer which conducts five or more criminal background checks per year must establish a written CORI policy which:

Notifies the candidate of a potential adverse employment decision based upon the CORI information;

Provides the candidate with a copy of the CORI information in the employer’s possession, together with a copy of the employer’s written CORI policy; and

Provides the candidate with information regarding the process to correct criminal information.

The employer must retain the criminal record information for seven (7) years after the adverse decision or termination of employment, after which it is required to discard that information.

The practical implication of these changes to the CORI system is that employers must undertake immediate action to conform their employment applications to eliminate any initial inquiry into criminal background. And, in addition, employers who conduct five (5) or more criminal background checks on employees much establish a written CORI policy which complies with the law’s requirements.

Please contact me directly at (617) 330-7123, or at dmurphy@rubinrudman.com, if you have any questions or need assistance with compliance.

Imbedded among the provisions of what the Legislature declared an “emergency law” entitled “An Act Relative To Economic Development Reorganization” are major changes to the requirements of the Massachusetts Personnel Records Act, Mass. Gen. L. Ch 149, Sec 148, subsection 52C.

Under this new law, which became effective August 5, 2010, an employer must now:

1) Notify an employee within 10 days, if the employer places any information in the employee’s personnel file which either has been or will be used to negatively impact the employee’s employment with that employer. Specifically, if any of this information could be used to evaluate an employee’s performance and subject that employee to disciplinary action, adversely impact that employee’s opportunity for promotion, transfer, or additional compensation, the employer must now comply with this new law and give notice of the filing of this information into the employee’s personnel file.

2) If an employee requests, in writing, the opportunity to review his or her personnel record, the employer must provide that employee with an opportunity to review that record within 5 days of receipt of the written request. NOTE: The new law also provides that the review of the record shall take place at the employer’s place of business, during normal business hours.

3) If an employee provides a written request for a copy of his or her file, that request, as well, must be honored within 5 days of the written request for a copy of that record.

An employee may only request a review of his or her personnel file on 2 occasions within a calendar year, unless that employee has received a notification of the placement of negative information in that employee’s personnel file. This notice and the opportunity to review the file are not considered part of the 2 maximum reviews per calendar year.

These changes are significant and will tremendously impact the work of human resources professionals and management, and how they approach employee relations and personnel records.

If you have any questions about this new law, please contact me directly at dmurphy@rubinrudman.com or (617) 330-7123.

Massachusetts has enacted new anti-harassment and anti-abuse laws which will affect on the workplace. The law, which becomes effective on May 10, 2010, creates a procedure for anyone to obtain a protective order for harassment if they are the victims of three acts of intimidation, abuse, or property damage, or are they are the victims of a forceful or threatening act which causes another to involuntarily engage in sexual relations or other related crimes. The law uses definitions of “abuse” and “harassment” which are so broad that there will be significant workplace implications.

These procedures allow courts to issue Harassment Prevention Orders (“HPO’s”) against anyone who engages in these types of behaviors. Unlike the more restrictive state and federal anti-harassment laws which prohibit harassment based upon protected class status, HPO’s are not subject to administrative filing prerequisites, nor are they limited to claims based upon protected class status. HPO’s can be filed in superior court, the Boston Municipal court, or the respective divisions of any juvenile or district court in which the plaintiff resides. And, they may be filed on an emergency basis without any notice to the defendant (ex parte).

The statute defines “abuse” as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.” Under the HPO, if a person engages in “3 or more acts of willful and malicious conduct with the intent to cause fear, intimidation, abuse or property damage toward a specific person, and does, in fact, cause fear, intimidation, abuse or property damage to that person, the victim may obtain injunctive relief from the court, prohibiting the harasser from any contact with the victim. As a practical matter, this means that an employee who engages in this type of behavior at work can be prevented from returning to work until and unless the issue is resolved to a court’s satisfaction.

We are all aware of workplace situations in which co-workers, bosses, and even clients and customers, engage in inappropriate and unprofessional conduct at work. They yell, they scream, and they throw things around when things don’t go their way. So called “workplace bullies” are not the norm, but they do exist and create significant morale and productivity issues at work. Now, with the implementation of this new law, the possibility exists that these unrestrained individuals face far more significant consequences than disciplinary actions from their employer. While HPO’s are civil in nature, they are enforced criminally if violated.

What Should a Massachusetts Employer Do?

As a result of the new Massachusetts law, employers should undertake measures to reduce the likelihood of abuse or harassment within the workplace. Prevention of abusive behaviors and harassment should be the first goal. If reported, an immediate and appropriate response is critical. I suggest that every employer provide training, guidelines, and effective reporting procedures.

For further information regarding the implications of this new law in the workplace, please contact me directly at dmurphy@rubinrudman.com or at (617) 330-7123.

An amendment to the Massachusetts Wage Act has businesses–and their lawyers–calling the changes unfair and punitive. What’s the change? Under the amendment passed in April 2008 by the legislature, which went to effect on July 13, 2008, the civil punishment for wage and hour violations is now treble damages, regardless of whether the violation was intentional or not.

Of course every business needs to pay their workers in accordance with the law, which means, among other things, overtime for weeks of over forty hours, with mandatory overtime on Sundays and certain holidays in retail establishments, and vacation and commissions policies that conform with the law. The law already provided for strict damages, including back wages, attorneys’ fees, and sometimes multiple damages for intentional violations. Egregious violations of the law may also lead to criminal penalties.

But multiple damage awards used to vary depending on the culpability of the business. Some violations might result from errors at a payroll processing company or misunderstandings of the law, and a company had the right to plead a good faith defense to charges of violations. The state and federal departments of labor were usually forgiving in such circumstances, giving employers a second chance to mend their ways.

Unfortunately, the law of the land means that every violation will now be treated as a triple damages case.

The lesson for businesses: Time to take a close look at your employment practices. Double check your controls to make sure the wage and hour laws are being followed to the letter! This means double check with payroll companies too.

Contact me if you need to review your compliance with the wage and hour laws. This is a very important area for all employers, and it is wise to invest in prevention to avoid potentially serious fines down the road.